Read all about it, if they’ll let you

Last Saturday evening, TheAustralian Financial Review’s editor-in-chief Michael Stutchbury got a call from an old contact, Don Russell, the secretary of the Department of Industry, Innovation, Science, Research and Tertiary Education.

Stutchbury knew Russell from the 1980s when the bald and lanky Treasury economist advised Paul Keating, and from their time in Washington in the ’90s, when Russell was Australia’s ambassador and Stutchbury was AFR correspondent.

It appeared to be a good professional relationship.

The editor-in-chief had already received an agitated call that morning from Russell’s minister,
Greg Combet
, who was desperate to stop the AFR publishing explosive departmental documents prepared for him about the billions of taxpayer dollars the government was spending propping up Toyota, Ford and General Motors in Australia. A furious Combet claimed the information would cost car industry jobs and investment.

In an hour of phone conversations that evening and the following day, Russell and Stutchbury reached an understanding which would spare the department from trying to bring about an urgent Sunday afternoon court hearing to legally suppress the information.

Related Quotes

Company Profile

Russell acknowledged that the AFR could already have posted the documents online for anyone to see, copy and further distribute. And he said the government was mainly worried about the confidentiality of the individual companies’ business and investment plans, not with the details of the special handouts it had given to Ford and GM Holden early this year.

Combet’s bureaucrat suggested a deal: if Stutchbury held off, the department wouldn’t rush into court demanding a suppression order. The government might allow the newspaper to use some of the information which did not reveal the car companies confidential business plans – it just needed a legal framework within which it could talk.

Not wanting to be drawn into a costly and lengthy legal battle against an opponent with limitless financial resources, Stutchbury agreed. As a courtesy he agreed to give the government 48 hours’ notice before publishing any information from the 39 ministerial memos, briefing papers and background material, including financial information and product plans from the three car makers.

The government’s lawyers had already asked a NSW Supreme Court judge to be on standby. Then Russell agreed to call off the court hearing.

Clayton Utz lawyers acting for the department and the AFR’s lawyer negotiated throughout Sunday. Much of the information wasn’t sensitive or was already on the public record. Much of it was historical: the documents were prepared shortly after Combet was appointed industry minister in December and his predecessor,
Kim Carr
, was demoted to manufacturing minister.

The documents were released under a freedom of information request by the AFR in February. But so much information was blacked out from the files that the newspaper asked the department to review its own decision. The AFR argued the government must have kept secret some information it was required to release under the law. Two examples: a thank-you letter sent by Senator Carr to US auto executives, and the heading – not the body – of comments prepared for the minister to use in question time in Parliament.

The review was conducted by Mike Lawson, the head of the department’s manufacturing division, which oversees the car industry. Lawson declined to release the thank-you letters or any substantive extra information, including complaints from the industry – which is dominated by three foreign companies – about free-trade agreements Australia could sign with other countries.

It is Lawson’s job to work with business and union lobbyists. He is chairman of the Australian Industry Participation Working Group, which advises the government how to help Australian companies win contracts on big projects. Other members of the group include Australian Industry Group chief
Innes Willox
, and Australian Manufacturing Workers Union economics adviser Nixon Apple.

The new documents vetted by Lawson arrived at the AFR on Friday night. Through some kind of computer error, the sections of the documents meant to be redacted were visible. According to an affidavit filed by the government in the NSW Supreme Court, the person responsible for sending out the incorrect files was the senior FoI officer who processed the AFR’s request, Helles Byrnes.

Despite Stutchbury’s agreement with Russell, the government’s lawyers told the AFR late on Sunday afternoon that there would be no deal to share any of the information.

On Monday morning the government sought an order that would require the newspaper to delete its only electronic version of the documents, which was stored in a private folder on Stutchbury’s hard drive, and destroy all but one hard copy, which it was required to lodge with the court. The government argued that the suppression was needed to prevent the AFR from acting ‘’unconscionably’’.

A hearing on Tuesday in the NSW Supreme Court will consider whether the suppression order should be made permanent.

The only way the AFR’s lawyers can look at the documents to prepare their case is in the Supreme Court in Sydney.

They intend to argue that a lot of the information is already in the public domain, or in the public interest, and is required to be released under the law.

The redacted Combet files are available to anyone. But unlike other departments, which put FoI documents on their websites, Industry requires members of the public to request copies. The person to ask: Helles Byrnes.

Hopefully, Helles will call back. Because after urgently seeking to speak to Stutchbury on Saturday night, Russell this week declined to return the editor’s numerous calls.